END-USER LICENSE AGREEMENT (“EULA”)
IMPORTANT – READ CAREFULLY
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “LICENSEE”) AND MTP SOFTWARE, LLC. (A MASSACHUSETTS CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN MASSACHUSETTS), ON ITS OWN BEHALF AND ON BEHALF OF ITS SUBSIDIARIES, DIVISIONS AND AFFILIATES (COLLECTIVELY REFERRED TO AS “MTP SOFTWARE, LLC”), FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE WHICH INCLUDES COMPUTER SOFTWARE AND ASSOCIATED MEDIA AND DOCUMENTATION AND ALL PROPRIETARY PRELOADED CONTENT (COLLECTIVELY “LICENSED SOFTWARE”). BY OPENING THE SOFTWARE PACKAGING, COMPLETING THE SERIALIZATION PROCESS, OR DOWNLOADING, INSTALLING, ACCESSING OR UTILIZING THE LICENSED SOFTWARE OR CLICKING THE “I ACCEPT” BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, PROMPTLY RETURN THE UNUSED LICENSED SOFTWARE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A REFUND.
1. Protection/Ownership. The Licensed Software may include software and/or proprietary preloaded content owned by third parties (collectively "Third-Party Owners"). The Third-Party Owners are third-party beneficiaries of this EULA and You agree that all terms of this EULA that benefit and are protective of MTP Software, LLC (including, without limitation, limitations on warranties, representations and liability) shall equally benefit and protect all Third Party Owners and each of their respective parents, subsidiaries, division and affiliates with respect to the Third Party Owners’ software and/or proprietary preloaded content and You agree to be bound to them under all the terms and conditions of this EULA, unless and to the extent that a separate license agreement for such software governs. The Licensed Software is protected by copyright and other intellectual property laws. MTP Software, LLC or a Third Party Owner retains ownership of the Licensed Software and the copies of the Licensed Software provided herewith. The Licensed Software is licensed to Licensee for use subject to the terms set forth in this EULA.
2. Grant of License. MTP Software, LLC hereby grants to Licensee and Licensee fully accepts, upon delivery, a nonexclusive, nontransferable and perpetual (unless earlier terminated as provided below) right to use only the executable version (no source code) of the Licensed Software for its own internal business purposes. Installation of the Licensed Software entails completion of a serialization procedure in which You will be required to enter a serialization code(s) provided to You as a part of the Licensed Software. You agree not to disclose the serialization code(s) provided to You to any third party other than an authorized MTP Software, LLC reseller (“Reseller”). The serialization code indicates to the loaded Licensed Software the number of authorized concurrent users covered by the license.
3. Scope of License. You are allowed only the number of concurrent users of the Licensed Software as shown in the corresponding purchase order or other order confirmation form. The number of authorized concurrent users covered by the license will be visually displayed to You during the serialization procedure. A remote user accessing the Licensed Software (via a web-enabled product) is considered to be utilizing one concurrent user license. Nothing in this paragraph shall limit Licensee from allowing its employees, agents or representatives or the employees, agents or representatives of Licensee’s parent, subsidiaries or affiliates, if any, from accessing or using the Licensed Software for Licensee’s own internal business purposes; provided, however that the total number of concurrent users does not exceed the number of authorized concurrent users covered by the license.
4. Additional users. If You wish to expand the number of authorized concurrent users covered by the license You may be able to purchase the additional licenses from MTP Software, LLC or a Reseller. Such added licenses will be affected by the provision of additional serialization code(s) by MTP Software, LLC.
5. Transfer. To the maximum extent permitted by applicable law, Licensee may not resell or otherwise transfer for value the Licensed Software. Notwithstanding the foregoing, Licensee may assign all of its licensed rights and duties under this EULA to a third-party that: (a) directly or indirectly controls Licensee; (b) is controlled by or under common control with Licensee; or (c) purchases all or substantially all of Licensee’s assets; provided, however, that (i) Licensee gives written notice to MTP Software, LLC of the transfer or assignment; (ii) the permitted third-party assignee agrees to be bound by all the terms herein and completes and returns a registration card or other requested transfer documentation to MTP Software, LLC; and (iii) in no circumstance shall any transfer or assignment, unless specifically agreed upon in writing, (y) release Licensee from any prior outstanding obligation under this EULA, or (z) allow Licensee or Licensee’s transferee or assignee, collectively, to utilize more licenses than the number of licenses authorized under this EULA. If You transfer the Licensed Software, You must simultaneously transfer possession of all associated media and documentation, and remove all Licensed Software from Your computers.
6. Restrictions You agree not to copy the Licensed Software except for backup and disaster recovery purposes, or as described in the documentation comprising the Licensed Software. If You make backup copies of the Licensed Software, the original copy of the Licensed Software and all backup copies that You make may not leave your control and are owned by MTP Software, LLC or a Third Party Owner. You agree that this is a license only and that no title passes to You. You agree not to challenge MTP Software, LLC’ rights in or otherwise attempt to assert any rights in the Licensed Software, except those provided under this EULA. You agree not to disclose, modify, decompile, translate, disassemble or reverse engineer the Licensed Software. You agree not to distribute, rent or lease the Licensed Software. You agree not to use the Licensed Software as a commercial hoster or application service provider. You agree not to use the Licensed Software except as expressly permitted under this EULA. You acknowledge that the Licensed Software contains information deemed confidential or otherwise proprietary to MTP Software, LLC or a Third Party Owner, and You agree to handle the Licensed Software with at least the same degree of care employed with respect to Your own confidential or proprietary information.
7. Links to Third-Party Sites. You may link to third-party sites through the use of the Licensed Software. MTP Software, LLC is providing such links to you as a convenience only. MTP Software, LLC does not generate or control the content of the third-party sites and is not responsible for and does not endorse the policies, practices or contents of any third-party sites.
8. Warranty/Remedy/Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY AND REMEDY SET FORTH BELOW ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. Except as provided for in this EULA, no MTP Software, LLC reseller, dealer, agent or employee is authorized to modify or add to the following warranties and remedies.
MTP Software, LLC warrants that for a period of sixty (60) days following delivery of the Licensed Software (i) the media on which the Licensed Software is furnished shall be free from defects in materials and workmanship under normal use; and (ii) the Licensed Software will perform substantially in accordance with MTP Software, LLC’ user documentation accompanying the Licensed Software. MTP Software, LLC does not warrant that the Licensed Software will meet your requirements or that the operation of the Licensed Software will be uninterrupted or error free or that all defects will be corrected. This Limited Warranty is void if failure of the Licensed Software has resulted from accident, abuse, modification, or misapplication of the Licensed Software. The aforementioned warranty specifically excludes Third-Party Owners’ proprietary preloaded content.
If you believe there is a defect in the Licensed Software such that it does not meet the Limited Warranty provided above, you must notify MTP Software, LLC in writing within the 60-day warranty period. MTP Software, LLC’ entire liability and Your exclusive remedy with regard to the Limited Warranty, shall be, at MTP Software, LLC’ sole discretion, either repair or replacement of the Licensed Software or a refund of the amount paid by You for the Licensed Software (provided in that case that You also return the Licensed Software). Any repaired or replacement Licensed Software shall be warranted for the remainder of the original warranty period.
To the maximum extent permitted by applicable law, except as provided above, MTP SOFTWARE, LLC MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT ANY PROPRIETARY PRELOADED CONTENT IS TIMELY, ACCURATE OR ERROR FREE.
UNLESS BOTH EXPRESSLY REPRESENTED AND AGREED IN WRITING, THE LICENSED SOFTWARE IS NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. MTP SOFTWARE, LLC AND ANY THIRD-PARTY OWNERS RECOMMEND AGAINST, AND DISCLAIM ANY LIABILITY FOR, USE OF THE LICENSED SOFTWARE IN ANY SUCH APPLICATION.
You understand and acknowledge that MTP Software, LLC will not be liable for network-related problems attributable to the operation of the Licensed Software and that network configuration changes may affect the system's performance.
To the maximum extent permitted by applicable law, and except for liability arising under paragraph 9 below, MTP Software, LLC’ entire liability under this EULA shall be limited to the amount paid by You for the Licensed Software.
IN NO EVENT WILL MTP SOFTWARE, LLC BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, even if advised of the possibility of such damages. In particular, and without limitation, MTP Software, LLC shall have no liability for any data stored or processed with the Licensed Software, including the costs of recovering such data.
9. Indemnification. MTP Software, LLC represents that it has the right to grant to Licensee the license to use the Licensed Software as set forth in this EULA without violating any rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by MTP Software, LLC. MTP Software, LLC will defend, indemnify and hold Licensee harmless from any third party claim that the Licensed Software infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) MTP Software, LLC shall be notified promptly in writing by Licensee of any such claim; (ii) MTP Software, LLC shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with MTP Software, LLC, at MTP Software, LLC’ expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by MTP Software, LLC; and (v) should the Licensed Software become, or in MTP Software, LLC’ opinion likely to become, subject to such claim of infringement, then Licensee shall permit MTP Software, LLC, at MTP Software, LLC’ option and expense, either (a) to procure for Licensee the right to continue using the Licensed Software, or (b) to replace or modify the Licensed Software so that it becomes noninfringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of MTP Software, LLC, to terminate this EULA and return the license fee paid by Licensee for the Licensed Software.
10. Maintenance and Support. MTP Software, LLC provides maintenance and/or technical support (including upgrades and enhancements) for the Licensed Software only through separate Agreements. Please contact MTP Software, LLC or the place from which You obtained the Licensed Software if You wish to obtain maintenance and/or technical support through the execution of such an agreement.
11. Export Control. You may not export, ship, transmit, or re-export the Licensed Software in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export.
12. United States Government Restricted Rights. THIS SECTION APPLIES ONLY TO LICENSING OR USE BY THE FEDERAL GOVERNMENT OF THE UNITED STATES. The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the federal government is subject to restricted rights as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 252.227-7014 for DOD contracts and at FAR (48 CFR 52.227-19) for civilian agency contracts or other comparable agency clauses.
13. Termination. Your right to use the Licensed Software continues until this EULA is terminated. You may terminate this EULA at any time by destroying all of Your copies of the Licensed Software. This EULA will automatically terminate if You fail to comply with the material terms of this EULA. Upon any termination, You agree to remove all Licensed Software from Your computers, destroy all copies of the Licensed Software, and, upon request from MTP Software, LLC, certify in writing Your compliance herewith.
14. Severability. If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
15. Whole Agreement. This EULA and any applicable MTP Software, LLC order form or maintenance and support agreement or like document constitutes the entire agreement between You and MTP Software, LLC relating to the subject matter hereof, and any additions to, or modifications of, this EULA shall be binding upon the parties only if the same shall be in writing and duly executed by You and by a duly authorized representative of MTP Software, LLC. THE TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM RELATING TO THE LICENSED SOFTWARE ARE ONLY BINDING ON MTP SOFTWARE, LLC IF SUCH TERMS AND CONDITIONS ARE AGREED TO IN WRITING IN ACCORDANCE WITH THE PRIOR SENTENCE AND IN A DOCUMENT OTHER THAN THE PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM.
16. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this EULA shall not be deemed a waiver of any further or future right under this EULA.
17. Assignability. This EULA shall inure to the benefit of, and is freely assignable to, MTP Software, LLC’ successors and assignees of rights in the Licensed Software.
18. Resellers. If Licensee acquired the Licensed Software through a Reseller, Licensee acknowledges that (i) payment and delivery terms for the Licensed Software must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and MTP Software, LLC regarding the license rights for the Licensed Software as described above and is controlling; (iii) the terms and conditions of any purchase order or any other agreement between the Licensee and the Reseller are not binding on MTP Software, LLC; (iv) the Reseller is not MTP Software, LLC’ agent and is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Licensed Software; and (v) Licensee’s nonpayment of any amount due to a Reseller or any other relevant third party relating to its licensed rights under this EULA shall constitute a basis for MTP Software, LLC’ termination of this EULA. Licensee further acknowledges that MTP Software, LLC makes no representation or warranty with regard to any services provided by any Reseller, or any actions or failures to act by any Reseller.
19. Marketing Collateral. MTP Software, LLC reserves the right to use the names and/or logos of corporate Licensees in its internal and public marketing collateral.